ABA Journal on Bar/Bri Class Action:
Lawyer Says: We Got 'Screwed 
By This Blatant Monopoly'
-  2/16









The Complaint

The Incendiary Memo

 

$49M Disappoints Some in Lawyers' Class

By Matthew Hirsch
The Recorder
February 9, 2007

At least two lead plaintiffs represented by the law firm McGuireWoods are vigorously opposing a proposed $49 million settlement the firm reached this month in a class action against the nation's leading bar review company, BAR/BRI.

In addition to providing perhaps $125 to each of the estimated 300,000 class members, the pact calls for BAR/BRI owner West Publishing and co-defendant Kaplan Inc. to discontinue a 10-year-old co-marketing agreement, according to a statement McGuireWoods sent The Recorder.

West Publishing also committed to "accurate advertising of the BAR/BRI course in accordance with state and federal laws" and to advise law students who enroll in its course as early as their first year "that they are, in fact, not committed to making full payment for the BAR/BRI course when they graduate, or to taking it."

Some lead plaintiffs say these concessions fall far short of the promises made to them when they signed up as class representatives.

Loredana Nesci, a 2005 graduate of Quinnipiac College School of Law in Connecticut , said lead attorney Eliot Disner initially convinced her he'd built a strong case against BAR/BRI and would seek to break the company apart. "We were promised the moon and stars by Disner," she said.

But Nesci said everything changed after Disner's former firm Los Angeles ' Van Etten Suzumoto & Becket was acquired by McGuireWoods.

"After that merger, I think that McGuireWoods took Eliot, gagged him [and now] he's in a basement in their firm, because I can't find the guy," said Nesci, now a practicing attorney based in Studio City .

Disner confirmed Thursday that the last time he talked to Nesci was "some time ago." But when asked if his role in the BAR/BRI suit had been reduced, he referred the question to William Allcott, a partner in McGuireWoods' main office in Richmond , Va.

Allcott, who was not involved in the BAR/BRI suit, said Disner was never removed from his work on the litigation. "As this case approached trial [which was set to begin Feb. 13], it was necessary to bring in additional lawyers to help prepare the case. Eliot was actively involved, as well as [ L.A. partner] Sid Kanazawa and other lawyers," he said.

Though Disner and Allcott would not respond to the criticisms their clients have made about the proposed settlement, a memo written by Nesci and two other lead plaintiffs, dated Jan. 29, exposes a gaping split between them and their lawyers.


'Not that money is everything, but if it's supposed to represent something that you've been working on for like two years, that pretty much sucks.'

LOREDANA NESCI
lead plaintiff


The nine-page memo raised two main objections to the proposed settlement: Compensation for plaintiffs was too low, and the deal offered only "nominal" injunctive relief.

Minus attorneys fees, which Nesci estimates will be about $12 million, the memo says most class members will be left with about $125. According to McGuireWoods, after attorneys fees and expenses are paid, the rest of the money will be distributed to class members based on what each paid for their courses.

"Not that money is everything, but if it's supposed to represent something that you've been working on for like two years, that pretty much sucks," Nesci said.

Available in all 50 states, BAR/BRI offers would-be lawyers a package of study materials and services to prepare for the bar exam. In California , the courses can cost upwards of $3,000. The company, which is owned by West Publishing Corp., has claimed to control more than 95 percent of the market for its business, according to court documents filed by class counsel in the case.

The suit, initially filed in 2005, alleged that West Publishing negotiated a secret deal with Kaplan Inc. to carve up the legal test prep market, leaving BAR/BRI with a virtual monopoly over the bar courses, and Kaplan dominating the market for LSAT prep.

Disner brought a similar suit over bar courses in the early 1990s, but was ultimately unsuccessful.

Within the memo and in separate interviews, Nesci and co-plaintiff Lisa Gintz, who practices in Baton Rouge , La. , said they would do everything in their power to get the settlement revoked. Failing that, the two have indicated that they will ask the Central District of California to disgorge legal fees from their attorneys for alleged breach of fiduciary duty.

"Sudden showers may drench an attorney when he ventures out as a principal without the protective umbrella of his client," says the memo, citing a popular legal ethics text. It speaks for Nesci, Gintz and apparently co-lead plaintiff Ryan Rodriguez, though Rodriguez, a deputy district attorney in Los Angeles , did not return a call seeking comment.

Such a rift is very unusual, said Dan Wall, chair of the global antitrust and competition practice group at Latham & Watkins, who is not involved in the BAR/BRI litigation.

Class representatives who have had long-term associations with a case rarely raise objections, so it's hard to predict what effect the opposition in the BAR/BRI suit will have, Wall said.

Not a lot of objections based on the amount of a settlement succeed, according to Wall and two other class action attorneys. The tendency is for the courts to assume that class counsel were interested in getting maximum value for their clients, they said.

"There's sort of an unstated awareness that these are people who have not invested anything in the litigation and have not really dealt with some of the risks involved," Wall said.

But Wall said an objection based on failure to provide injunctive relief is different.

"When someone comes along and says nothing is going to change as a result of the class action [and] the conduct is ongoing, the court's going to have to think about that," he said.

A defense lawyer for Kaplan and a spokesman for BAR/BRI both issued brief statements defending the proposed settlement, but neither answered questions about the opposition being mounted by at least some of the seven lead plaintiffs.

Disner insisted the settlement, which still requires a federal judge's approval, "is not chump change. It's measure of relief for the class."

"If the judge disagrees with our conclusion," added Allcott, "we're prepared to go to trial right away."
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